Nesco v. Haddix
2011 Ky. LEXIS 83
| Ky. | 2011Background
- ALJ found claimant's Nesco employment was sporadic but failed to specify whether 342.140(1)(d) or (e) applied to calculating her AWW.
- Board reversed/remanded for proof and analysis under 342.140(1)(e).
- Claimant argues for 342.140(1)(e) because injury occurred with less than 13 weeks of employment, seeking $320.00 AWW.
- Nesco argued AWW should be based on 13 weeks prior to injury under 342.140(1)(d) (averaging 13 weeks with earnings MSS).
- Claimant had temporary, sporadic work with Nesco and a short-term Star placement; Star job described as temp-to-hire by some witnesses but not consistently so.
- The court instructed remand to analyze evidence under 342.140(1)(e) and consider unique intermittent employment facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 342.140(1)(d) or (e) governs AWW | Haddix insisted (e) controls. | Nesco urged (d) or alternative (e) as best fit. | Legal question; (e) governs analysis on remand. |
| Did ALJ commit harmless error by not stating subsection used | Record supports (e) and needs remand for analysis. | ALJ's failure to specify is harmless. | Remand required for proper 342.140(1)(e) analysis. |
| Whether additional proof should be taken on remand | Claimant relied on (e) and evidence already presented; no new proof needed. | Additional proof permitted if necessary. | Record contains sufficient evidence; remand to analyze under (e) but not to reopen proof. |
| Appropriate method under (e) given sporadic, nearly two-year relationship | Unique facts require realistic estimation of earnings over full 13 weeks. | Evidence insufficient to force a specific (e) calculation. | (e) may be based on reasonable inferences from relationship and similar workers' earnings. |
Key Cases Cited
- C & D Bulldozing Co. v. Brock, 820 S.W.2d 482 (Ky. 1991) (supports applying (e) when employment is intermittent; consider earnings over 13 weeks ending injury)
- Huff v. Smith Trucking, 6 S.W.3d 819 (Ky. 1999) (emphasizes unique circumstances and realistic earnings under (e))
- Roark v. Alva Coal Corp., 371 S.W.2d 856 (Ky. 1963) (authoritative on burden of proof in WC claims)